The High Court made no order as to costs after a national school board of management failed to join a teacher’s judicial review proceedings against the Health Service Executive (HSE).
Mr Justice Keane ruled on 8 April 2014 that the school board should receive no costs from either N.L. or the HSE, and that neither should receive costs from the board. The costs hearing followed the court’s refusal on 20 March to allow the board to join the case as a notice party.
N.L. is challenging the HSE’s investigation and finding concerning allegations of child sexual abuse at the school. The allegations are not determined in this costs judgment. The board had rescinded administrative leave imposed on N.L. several years earlier, relying on the HSE’s finding, according to the judgment.
The board argued that it had acted proportionately in seeking to join the proceedings after N.L. and the HSE declined to provide it with the underlying papers. It also pointed to a relief sought by N.L. that could have led to directions to remove the allegations from his personnel file at the school. After the board received the papers for the purpose of its joinder application, N.L.’s lawyers accepted that this relief may have been “over-pleaded” and gave an undertaking that it would not be pursued at the substantive hearing.
N.L. argued that he had been entitled to resist the board’s application because the alleged unlawful conduct in the judicial review was that of the HSE alone, and that he had succeeded subject to the undertaking. The HSE sought its costs from the board.
The judge considered the application proportionate in light of the board’s position and the refusal to disclose the papers, while noting that neither existing party had a legal obligation to provide them. But the board continued with its joinder application even after the undertaking, arguing it remained directly affected; it was wholly unsuccessful on that application.
Applying principles governing discretionary costs awards, the court treated the dispute as having two valid perspectives on who had succeeded overall. About half of the hearing time concerned access to the papers and whether the proposed relief affected the board; the judge considered the time attributable to issues on which each side prevailed to be roughly equal. He therefore made no order as to costs between the board, N.L. and the HSE. The judgment did not decide the merits of N.L.’s judicial review.